tv Discussion on Internet Privacy and Surveillance CSPAN May 5, 2016 8:22am-9:50am EDT
now, in a probably correctly noted that there are some people who are deterred by this age of massive surveillance, and then it adversely impacts their speech. i'm in favor of, a litigate a lot on this space, i get it. the question is people have unreasonable fear about something that view should not be embellished. you could be and over come good for you despite some risk. so i, no doubt, that there is some self sensors, but that's
not reasonable people comfortable for that degree of government. that's a funny thing to me and i do a lot of regulatory law. the government is far far more able to hurt individuals and companies in spaces that have nothing to do with terrorisms uncovering alleged health care fraud. security violations, i mean, i'm not saying i certainly administrations i'm not an antigovernment nut. it cannot be clumsy. the government can be oppressive individual officials and vindictive. that's why we have laws state level who have done it. far worse things believe, me, happening in the other spaces we're not touching today. the terrorism and national
security that is good. i'm in favor bolstering a sign a piece of paper attesting but they've been briefed. we don't have memory failures like some people had. if you're not saying something now. that would be a good thing. it's good, there are no problems fundamentally here. one final point which is both, you know, matter of policy and law. judiciary should be more involved or respect lending is -- makes no sense essentially
signing off on war in applications, that's it. war in commission to investigate this or some other commission to investigate that so you can have a chief justice participating in its capacity in some policy exercise. set on some commission some day. that's not what it does. i would submit to you that even today it's probably operating social remit and they past judgments on problematic components of national surveillance. approving warrants. and the constitutional way, but
in general, it was very smart, having the judiciary participate in something that ain't judicial doesn't do any good. it gives cover to the two political branches, only diffuses responsibility and accountability of robber have the executive, the accountable for what it does, congress be accountable for what it oversees and it comes from both critics of surveillance, collection as well as support. who cares comprised of federal judges if you put a judges in there will make it better t. bottom line view, no fundamental problem. it's fundamentally fine in this space and we should have a serious education campaign that tells people one final point,
what i don't understand for the life of me, we live in the age where people almost happy to expose the innermost thoughts and more private observations on facebook and twitter and this and that to a cast not only to closest friend, but hundreds of people who submit all sorts of information to commercial entities, you know, to get credit and goods and services and there's other benefits, okay. there's some regulation there and i'm not saying, but do it there are some people that go live in the woods. why are people much more comfortable doing all of that in a situation that's a lot less oversight and regulation and a lot more opportunity for abuse. there are definitely abuses every time the data breaches and what not. who are spying on their girlfriend or wives.
why is this different, now the answer, of course, would be the government can be do worse things to you if you learn something local walmart. you have to be reasonable. it's a matter of reason. the government could do worse things but have they. what's the pathway the answer is zero. thank you. the answer is zero. it respected conservative who
injunctions against the nsa's indiscriminate surveillance program because he concluded that the mere existence of this program, even without independent abuses of its intended purposes, the mere existence in use of it against all of us innocent citizens who are trying to communicate on line was, itself, an abuse of the constitution, as he sard, i cannot imagine a more invasion than this high-tech collection and retention of personal data on virtually every single citizen without prior judicial approval. surely such a program infringes that they're trying in the fourth amendment. i have little doubt that the author of our constitution, james madison and for anybody who is a student of american
history and constitutional history, we know that above all else what the framers detested about the british rule and british tierney was the so-called ritz of general assistants that gave precisely purported to authorize officials to engage in inchris anymore gnat survey out by the standards of the nsa. this would be rather trivial, right, invading your physical space and rummaging through your papers as many people have commented, james madison and others would have rolled over in their graves if they could imagine, the infinitely more intrusive pervasive indiscriminate surveillance to which all of us are subject every single communication, every single thought, every single association, financial transaction, health information and the full treasure troef of
information about us that has been subject to the indiscriminate surveillance that judge leon found fit to find unconstitutional. however, there has also been specific abuse, even beyond the secretive, at best, deceptive, at worst, existence of the program as david does, but many defenders of that program do, which is to assert that it was subject to oversight by other branches of government, how meaningful is that oversight, given the shred of secrecy and dishonesty in which it was cloaked. the most notorious example of which being director of national intelligence, james clapper, testifying before congress in what he later admitted was a boldface lie, that this program was not going forward. he first retracted and
apologized by saying, well, that was the least untruthful answer i could give later on he retracted even further and apologized for having lied. so there cannot be meaningful oversight without truthful information from one of the pieces that you wrote, recently. that for the sake of making congress itself accountable and helping congress to make the surveillance and the executive branch -- surveillance authorities accountable to we, the people, there should be much more information sharing back and forth about this. in terms of the supposed control that was being imposed by this super secret one-sided for an intelligent surveillance court. that court, itself is hampered by the one cited nature of the
proceedings and even the limited amount of checks that that court which has been very criticized for being, essentially, a rubber stamp for every request for surveillance authority, it's been heavily criticized because it is so strongly oriented in terms of the judges who have been appointed to it, people with prosecutor yal and law enforcement background, so it's especially telling, that even if that court, without hearing advocates of privacy and civil liberties, even without having judges who have backgrounds of advocating private and civil liberties, when even that court has strongly critiqued and sanctioned the nsa for not to put two fine a point on it, lied to the court about what it was doing. let me quote a couple rulings by that have now come to light as a result of snowden's disclose sures that led to freedom of
information act efforts by the aclu and others. so first, i'm going to quote a 2009 ruling for this judge reggie walton. the court had imposed some trivial, i mean, not at all sufficient by the standards that i laid out, but some minimumization procedures to, again, the bit -- the indiscriminate sweeping nature of its surveillance and here is what judge walton said. he said that nsa had engaged in systematic noncompliance with fiscal or minimumization procedures over the past three years going back to the inception, the very inception of the program in 2006 and had also repeatedly made misrepresentations and inaccurate statements about the program to the judges.
he imposed a six month sanction, nonetheless, the record of failure to comply even with the limited controls that were imposed by the court persisted so that brings us to another angry order from a judge in this case, presiding judge john bates in october 2011. he found that the government had misrepresented the scope of its targeting of internet communications. he said, "the court is troubled that this is the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program. so, so much for the lack of abuse supposedly so much for the effective oversight supposedly. now, to turn from an area where we strongly disagree to an area
where we disagree, i'll turn to where we agree, at least in part. to the first point that david made and that is the seriousness of the threat to national security that this country faces. i take those threats extremely seriously as a practical matter i think it is noteworthy, however, that going back to 2013 our top national security officials have emphasized as the number one the number one national security threat that my country faces is not terrorism, serious as that is, but it is it is in fact threats to cyber security, so so signer threats
reporting on the testimony that director of national intelligence james clapper provided to congress on the annual worldwide threat assessment of the u.s. intelligence community. and he was accompanied in the congressional hearings with other top current officials of the intelligence world and they deemed cyber threats as the top global threat facing the united states, which is exactly why you see this con ste lags of past and current national security, counter intelligence and defense experts saying that if we allow the government to get back doors to our communications to engage
the. >> violated congress's statute, the relevant of the pray tree yot act. even members of the congress. have said, it was never our intent. certainly the language doesn't say it and it was never our intent to authorize this kind of indiscriminate surveillance, double wham and violating the u.s. constitution but beyond those abuses that consists of violation of our rights, we also have a problem, lack of government competence to protect us from from hackers, from cyber criminals, from even cyber terrorists, i'm concerned on a level of competence, as well. would we call this abuse, government to act in incompetently or negligently. it certainly bothers me whatever label you put on it.
just in 2015 alone the federal office of personnel management was hacked to the tune of 22 million personal records. we're talking about just one year last calendar year, hackers released beyond government the private sector has also been vulnerable here and made all of us vulnerable, hackers released 32 million accounts from ashley medicine, a site none of you are familiar with, let me explain, facilitates adultery and hackers also infiltrated anthem. vulnerable as a result of i've got to wrap it up, before the
government engaged surveillance are to strip. i would like to ask him what standard he would advocate instead? surely, he's not going to give the government absolutely free pass with no justification at all to engage in violations of both privacy and security. thank you. >> that the fourth amendment does not mean what -- some of our it may be used for
prosecutor yal purposes. but aside from that. . it's plenty of ladies and gentlemen dealing with, you know, side doctrine, if you put out information in the public domain, you have no reasonable expectation, you may have expectation of privacy. . when walked by and sees the plant, he does not need a warrant, it's in plain view, okay. and the same thing happens, by the way, when how much stuff gets acquired in other context.
get in and get all of your e-mails and service providers, no now. >> lots more acquisition by this information, because, by the way, if you entrust information the service provider goes up. it ain't legitimate expectation, the cases are talk dit dated back and forth. but something you need to realize, again, there are many years -- much tea party person than i am. it's a clumsy beast. it does most things not very
brilliant on most sides. people disagree about it. the fact that this judge's disagree about whether or not, you know, nsa complied with some minimumization water or some acquisition order, ain't, i'm not saying that they were wrong, they may well be right. i bet you, but it ain't unusual. it's not a sign of some horrible practices going on. okay. not mentioned anybody who was punished incorrectly. who suffered. okay. there's no such examples, they don't exist. and, again, compared with the normal regimen of our great government, which i love, and all administrations doing things they can do, the national security area is pretty done clean and pretty vile. and if you don't like that then you should, all guys, ladies
support tea party and donald trump and turn everything upside down because, believe me -- they fda, vacuum cleans records from pharma companies with a lot less using administrative subpoenas with a lot less oversight. . he does it to everybody. if you don't like this. the essence of reasonable risk assessment is to look at things across the board. can i just say, i don't like this. there are three things that present greater danger, that's okay with me. the final thing about the threat, look, there's no connection, i know of, when you technical person i heard tells me in simple terms between cyber threat and the kind of surveillance i'm talking about.
it's a classical straw man. i think the government should harden up as well as possible against cyber penetration, but have nothing to do with it. that's not an issue. and the final point is this, i don't care if terrorism is number one or two. it's a huge fret. and the only game in town, ladies and gentlemen, we have a surveillance, we do not have as cold war. . impossible any intelligent professional will talk about why, believe me they don't
defect, unfortunately, they guys defecting from isis. they don't seem to be that driven by money and they believe really bad stuff. they believe in it. we don't have that. by the way, we don't interrogate folks much these days at all. that's not politically correct no matter what the standards are. so the only damn thing we have to get at them is surveillance. . if we don't have that, we have nothing, minus well wait until we get hit with the next time, the next time and the next time. there's no problem. there's no crisis. i've heard nothing but suggest -- that suggest otherwise, thank you. >> i know i don't get a response. i would like to give david to honor his position. got the fringe benefit of having a picture of president obama. it's a little tent that shows president obama with a headphone and listening device thumbs up
saying, nsa approved and they're lemon flavored eves drops. so enjoy. think of me when you suck on them, david. >> i will put it on my desk. >> well, i'm sure everyone has enjoyed this and learned as much of this, than i have. i have been looking forward to this day for a long time and i've learned a great deal we don't have a lot of time. i'm going to take the moderator's prerogative and answer the first question, which goes as follows. if i were a martian and i just landed in the united states and i wanted to find out about
anything and i had some object to the form in additi-- omissio how the world works. i don't think i will go to the government. i will go to the private companies. they survey yal. collect information they retain information, they use that information. they know far more about practically any of us than, i'm sure, the federal government does. that what the internet has done has changed -- one of the many things that it's done, is it's changed the way information is used and it's -- dave, as you mentioned several times, the government is very clumsy, they're not very good at a lot of this stuff. the private sector is really, really good at that. and they probably if they wanted to monitor and you've told them, well, tell us who has been going to different rifle ranges and
different things, i'm sure somebody knows that. could you -- and, yet, there isn't an entirely different role in government as both of you have said, the government is different from the private company or a private entity and, yet, i think the relative scope and control of information that the government says. they probably have far more information about individuals than the private sector does. today, i think it's vastly and i just wonder, how does that enter into thinking about surveillance and -- >> can i go? >> you're making my point. we all live in a fish bowl when it's not comfortable, let's be recollusive and running to the -- -- people do not assess a given concern in the con tin yum. yes, i worry about this threat,
which means isn't very high given the way we live. it's not even high in the private surveillance company, you can go and if you're knowledgeable and young person, in particular, you can get more information about any one of us today than, you know, most of it could realize. you can get more mortgage documents. you can get, you know, a picture of your house. you can -- it's all there. since we accept that, we have to look at what the government can do as part of same broad narrative of our tolerance or the lack of total privacy. and then i understand that the government can do worse things to do, but not necessarily,
there's nothing to worry about in this space. that's one of my limitations. which is as a civil -- i do believe that government can have a positive role to play precisely in protecting our liberty and our privacy from violation by powerful private sector entities, which are not subject to constraint under the united states constitution. so the aclu and many others have joined in supporting legislation at every level of government, regulation and at every level of government to constrain the power of the private sector to collect, use, misuse, store, et cetera our private data.
now, at an -- in fact, very recently the fcc did announce that it was moving in a direction, but i think you've criticized harold, and forgive me if i'm wrong about that. >> right. >> subjecting through regulation internet service providers that in terms of their ability to reduce our privacy to misuse our information. on both subjects. gechb i'm not an absolutist and i don't know anybody who is. what we're asking are meaningful constraints in the government's sphere. that means that the government has to have a constitution demands individualized suspension. there has to be independent over beyond the executive branch of the government through the
>> why is it conservatives see in that constitution or in that constitution authority of the government to do things that aren't spelled out in the constitution and why is it that liberals are inclined to in general, go along with increased government activity but not when it comes to surveillance? >> well, i suppose the question is addressed to me at least in part, i will say with respect my constitutional way that's my -- that's my life and my vocation, i don't understand the question. the government i understand limited enumerated powers, i understand federalism, believe me, i do, but the government clearly can acquire information,
all purposes that are within the legitimate domain. the question really here is how, not whether and how is cabined of the fourth amendment applies to both federal government by the state. and any reasonable suggest back to my cannabis in the window kind of a hole analogy, that if this information ain't the one to reasonable -- if you take a machine gun and erected along, you cannot be very upset that the local police would come and some kind of ordinance against it, actually, you know, federal law machine guns would give you some hard time and arrest you, probably, because you did it. okay. you have a choice of whether or not to put a canvas plan in the window, put out machine gun on your lawn. you have a choice whether or not to give your otherwise private information, very metta data.
metta data ain't private all. it's not information you have on your own, it's information generated by your service provider in order to bill you, okay, it ain't private, certainly not private to you, it's a business record of your service provider. with all do respect, the notion that the framers madison esteemed would be upset, but if you walked out of your local pharmacy store in boston and ordered, you know, some eye drops in the presence of not only pharmacist but five other people, your neighbors standing there, there is private information which would warrant this requirement. what i don't understand, again, is kind of thinking, i'm talking about the jeintelligence that h all the time in brief work.
strange people driving around, maybe this or that. you can sample that information, the only probable kauds for that, that's not a warrant. . we're talking about doing the same type thing in a different sphere of electronic surveillance, that's it. why is it acceptable to go in local bar and say have you seen anything strange happen. you heard people talking about robbing warehouse, okay. who were they, did you recognize them, that's all kosher, but doing the same type of data development through surveillance, electronic surveillance so you can go tire and specific people you identify is somehow prohibited by the fourth amendment, it cannot be. >> i disagree with most of the detail that is david laid out, i'm going to try to go to the core of your question, your name was edward, right? which is, why do so many
conservatives depart from the text of the constitution and the original intent and so many do likewise depending on what the particular issue is rather than consistently trying to honor both the text on a number of cases in the unit supreme court before when the judge had nine contentious individuals who would often split 5-4 and being even more fragmented. we've had a number of recent decisions in which all nine of them came down very strongly in favor of privacy strongly
enforcing fourth amendment guarantees. the most recent example being the case raleigh case from 2014 and strikingly all nine of them held that it was unconstitutional to extend to the digital world, a judge made exception to the fourth amend that had been made seizures searches an seizures pursuant to an arrest when, basically, the law had been that fourth amendment standards aside, if somebody is arrested you can seize everything that that person has on his or her body. the cou said, no, we're not going to extend that exception to cell phones, given the wealth of private information that's available on those phones. i came down to really respecting the words and meaning of the
fourth amendment. i'm going to read you we cannot the decision will have an impact. cell phones can provide valuable incriminating information about dangerous criminals. privacy comes at a cost, but privacy is protected by the fourth amendment, so take comfort and one thing very briefly. the ironny here, i don't disagree with this decision and i understand what they were doing. let me assure you that once government gets somebody in custody, police, most likely, it's a fool'ser rand to get a warrant. i've dealt with a number of cases, getting a warrant is so easy peasy as my niece would say, it's not funny.
the problem, again, arises not in the context somebody has been taken into custody, okay, you're not going to automatically, on your own go search for his or her cell phone, you'll get a warrant from an industry, fine, two hours, three hours tops. it's not knowing out of millions of people out there, which ones deserve close scrutiny by law enforcement. that is the heart of counter terrorism. it's nothing to do with law enforcement go way beyond, which by the way, again very lenient.
. it's a good thing if some bad criminals go, it ain't the same in the context of counter terrori terrorism, the only way you can get at the people. the only way we can do it. is figure out which one out of hundreds of millions of people need to be looked at more closely, it's no other answer, i know we don't have time. i keep hearing about, well, i'll balance it differently, how would you do that, how would you know who needs to be investigated. you don't. you don't, unless you knew that kind of surveillance. >> let me point to a long data that has been called. if you ask anybody now in law enforcement or counter intelligence, are they better off now that they've been in the past, they would say yes, they have an infinite amount of
information information about us and have been successful many counter terrorism plats not to mention other law enforcement problems through the use of the techniques that are completely consistent. right after 9/11 i remember former fbi director william webster who was opposing the extended government surveillance power under the patriot act even before we realized they would extend that power even further beyond the plain language of the provision. he said, look, you know, when i was fbi director, he was also cia director, we were able to and he listed the number of plots through using good techniques, we did not jump over, paraphrasing him very closely, we did not need to jump all over people's privacy.
the buy partisan what have steps could be used to prevent another such tragedy that kind of analysis was not done before the patriot act and this expansy surveillance power was ramped that did not say we need more surveillance problem. not that wi can't gather the information but we don't have the capability, we're not investing other resources in this huge data that we already do have. so, yes, we can have effective protection against terrorism, nobody wants to be vulnerable to terrorism, certainly, not me.
>> respect, this is not and commission reporters to available to talk great length about the so-called wall, which is one specific manifestation of restrictions data showing that rooted in obsession of privacy. again, i respect you greatly, can you just in 30 seconds say how would you find somebody like mr. farook, let's get all the stuff about investigative techniques how you find another mr. farook, unless you look at my electronic footprints in the snow to see what are the tell-tell signs are bringing the best policies possible, if you massage data show you a deviation above the baseline. it's -- how would you do it. how would you find it. >> you do that as the director of national intelligence has said, with individualized suspicion. >> how would you do it? >> data experts have said that
the data mining that you are advocating, david, is junk science, that it is not an effective. what individualized suspension are you going to have. are you going to start bragging some will, but many will not. how would you get to individualized suspension in the modern world. how? >> i could stay here all day. >> i was hoping an audience could get to answer a question that's why i self censored. >> i promised our speakers we would be done 11 minutes ago. and i know you've got a plane to catch. please join me in thanks our speakers today. [ applause ]